Remember mountaintop removal?

June 6, 2014 by Ken Ward Jr.


For much of the week, media coverage of environmental issues has rightly been focused on climate change. Story after story has come out about the U.S. Environmental Protection Agency’s proposed carbon pollution rule for power plants, and about reactions to that proposal. Some stories, the like continuing deaths of coal miners both here and in other coalfield communities see also here), get less attention.

Late in the week, though, we were reminded of one of the more significant impacts that our reliance on the coal economy here in West Virginia has on our communities.  In a move that went pretty much unnoticed for a day (at least by me), U.S. District Judge Robert C. Chambers issued a blockbuster ruling in a mountaintop removal pollution case against Alpha Natural Resources, concluding the following:

Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams …  even like those used by Defendants‘ expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes — functions, in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses. Protecting these uses is the overriding purpose of West Virginia‘s water quality standards and the goal of the state‘s permit requirements.

We’ve got a story about the ruling online here, and you can read Judge Chambers’ decision for yourself here. Alpha Natural Resources, whose two mines were found by Judge Chambers to have turned once quality streams into “impaired waterways” where not just stream chemistry has been altered but overall aquatic life abundance has been “profoundly reduced” — had this to say yesterday when asked about the ruling:

The decision here flies in the face of determinations made by all three branches of West Virginia state government-a resolution passed by the state legislature, Department of Environmental Protection policy, and a May 30 Supreme Court decision-all of which point to the fact that conductivity by itself has not been proven to cause loss of sensitive mayflies, and that further evidence is needed beyond a set of bad bug scores to prove violation of state water quality standards. The state Supreme Court spells it out clearly, ruling that there is not adequate agreement in the scientific community that conductivity causes harm to aquatic life. We fully intend to appeal this ruling and expect to see it reversed.

Parts of the ruling (see especially pages 9 through 31 of the decision) are a pretty major take-down of efforts by West Virginia officials to fight federal or citizen efforts to crack down on conductivity pollution from mountaintop removal through state policy guidance, a legislative resolution and actual legislation — let alone last week’s ruling by the state Supreme Court.

In a statement from environmental groups, Vivian Stockman of the Ohio Valley Environmental Coalition said:

As the court recognized in its decision, the West Virginia Department of Environmental Protection is not enforcing its own narrative standards against mountaintop removal coal mines.  Unfortunately, that means it’s up to citizens like us to enforce the law and protect our precious streams.  Ultimately, protecting streams is not just for aquatic life, it is for us.

Randy Huffman, the DEP secretary, wasn’t pleased with the judge’s ruling. He said that when Alpha appeals it, state officials may seek to file a “friend of the court” brief to get their say:

Basically what happened is Judge Chambers set a water quality standard, which is concerning. There is a process for setting water quality standards, and I think the role of the courts is to see if that process took place. I’m not even arguing the science right now. This is really about the process.

Of course, Judge Chambers explained in his opinion that he was ruling based on the science — evidence the judge said was “overwhelming” — and the judge explained that he was ruling that, given that evidence, the streams at issue “are unquestionably biologically impaired” and “in violation of West Virginia’s narrative water quality standards.”  This case is certainly headed for an appeal, and while that goes on, we’ll wait to see if any West Virginia public officials ever step forward to try to address the growing science that shows residents who live near mountaintop removal face increased risks of serious illnesses and premature death.

One Response to “Remember mountaintop removal?”

  1. rgriffith says:

    This is a wonderful ruling for West Virginians who value our clean mountain streams, or at least what’s left of them. Water pollution from leaky chemical tanks or water pollution from Mountain Top Removal Mining, it’s all part of the same package.

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